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The need for more regulation of mediation

By Daniel Becker*

Over the last two decades mediation has gained recognition and popularity as a technique of alternative dispute resolution. Litigious societies such as the United States and England created a need for a less stressful, more time-efficient and inexpensive way to settle disputes. As a result, mediation rose to fame as a successful alternative dispute resolution process.

Adoption of mediation

This success is evidenced by the uptake of mediation as a mandatory process in New Zealand.

Over 50 acts mandate mediation. However, no act prescribes how “mediation” should be defined or identifies the mediator’s role. It is presumed that mediators know the process and their role in it.

The two professional associations, AMINZ and LEADR, help by providing education and training for mediators. However, membership and participation are not mandatory.

The problem

Without a Mediation Act, any individual, with or without a law degree or other training, can call themselves a mediator. This is a problem.

As mediations increase and more legislation mandates mediation, it becomes particularly important for the sanctity of mediation to be upheld. This means that mediation must be associated with the principles of certainty and reliability. If any individual can call themselves a mediator, this may undermine these principles.

A rogue mediator may knowingly or ignorantly depart from the principle of neutrality. A rogue mediator may not ask the right questions to explore the interests and positions of both parties. A rogue mediator may be too direct or too forceful. A rogue mediator may not test reality in situations in which a more competent mediator would.

A myriad of problems could arise due to simple incompetence. These problems might mean that the mediated outcome unduly favours one party. Once both parties sign, the mediated settlement becomes difficult to re-open.

The fact that over 50 acts mandate mediation shows a high level of trust in mediation as a process, but then we potentially turn parties over to practitioners who may have little or no idea of what they should be doing.

Some level of quality should be assured.

The crux of the problem is that while some level of quality should be assured, it is not, currently, because of the finality of mediated settlements. In Hildred v Strong [2008] 2 NZLR 629 at [46] the Court of Appeal was unwilling to re-open a mediated settlement. Justice Robertson stated that “[t]he Court is not available as a means of enabling parties who say – we wish we had gone about things differently and been more careful and insistent – to get a second bite at the cherry.”

As mediations become more frequent and more likely to be enforced by the courts, it becomes even more important to safeguard the quality and reliability of mediators.

The solution

If mediators were required to undergo some form of training, for example that offered by AMINZ and LEADR, or papers at a tertiary institution, then mediation would gain reliability and credibility.

The specifics of new training requirements can be worked out later.

There may be practising mediators who have not had any formal training, but who are nonetheless excellent. However, even these instinctual mediators would likely be helped, or at the very least not be hurt, by being required to take training.

Compulsory training will not guarantee quality, but it will provide a basic assurance for consumers of mediation services and it will benefit the profession.

Such training requirements could be applied to new practitioners only, allowing existing practitioners to gain the title of mediator through their existing experience. An alternative would be to phase training in over time, allowing existing practitioners time to get trained.

With over 50 acts mandating mediation, it would be a sensible step to ensure that mediation services are provided by mediators who have some foundational knowledge and understanding of the process.

Mediation is difficult to define and the principle of mediator neutrality is even more complicated. There is considerable difference in opinion as to the meaning of core mediation principles. In a survey of 300 mediators, mediator neutrality was variously defined as impartiality, omnipartiality, nonpartisanship and being unbiased. Training, like that offered by AMINZ and LEADR, can help promote uniformity and thus reliability.

Critics may argue that mediation is successful because it is a flexible and fluid process, which allows the mediator to adapt and mould the process as they think fit given the parties and their circumstances.

That may be, but with the prevalence of mandatory mediation, the process is slowly evolving from a fluid and flexible process to one that should, at the very least, be certain and reliable.

The benefits to the profession

There are two advantages to compulsory training.

First, the likelihood of departures from or contraventions against the principles of mediation could be decreased. Promoting common understandings by mediators of process, definitions and principles, would create greater certainty and reliability.

Second, consumers of mediation services would have greater assurances of receiving a quality service. If mediators are required to undergo some form of mandatory training or tertiary education, what can be lost?

* Daniel Becker is an LLM candidate in the Otago University Law Faculty.

This article was published in LawTalk 795, 11 May 2012, page 4.

 

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Last updated on the 22nd May 2012